On Sat, 8 Mar 2003 17:11:23 -0500 Greg Meyer <[EMAIL PROTECTED]> wrote:
> On Saturday 08 March 2003 04:53 pm, Joeb wrote: > > Not to disagree with you Todd, but when you say "They get their billion..." > > are you referring to SCO or the lawyers (not that it makes much > > difference)? :) > > > > Way I see it, there are a couple of questions. Q1) Was IBM entitled to use > > the code? A1) Yes, that is not part of the litigation. Q2) Was IBM > > entitled to release said code under the GPL? A2) Maybe, that's what the > > courts will now decide. Q3) What are the ramifications for Linux? A3) > > Could be as simple as said code must be removed - as with most things, > > there are several implementations that are submitted for the kernel, so a > > different one might need to be chosen. Q4) If IBM was not entitled to > > release said code, what are the damages? A4) That's the tricky part, since > > SCO Unix's value has increased along with the work IBM did with Linux, it's > > hard to argue damages (especially if the offending code is removed). > > Remember, most of the code is in the 2.5 Kernel which isn't officially > > released yet. Finally, Q5) What are the long term ramifications? A5) IBM > > may have to pay some money, Linux will continue to grow (although with some > > changed modules), SCO will continue to go down the tubes and most > > importantly, the lawyers will laugh all the way to the bank. > > > The suit doesn;t just talk about code, but methods and concepts as well. If > not one single piece of UNIX source code ended up in Linux, they are trying > to say that the way it works still infringes on it's IP. I find that quite > specious. > > The way I read your response, you seem to assume that code actually made it > into the kernel. This has only been alleged, not proven. The suit also > refers to Linux capability today in production. It would seem to me that if > any of this were true, but restricted to the 2.5 kernel, then damages would > be significantly less since it is not in widespread use. > > -- > Greg > > I agree it is a bold leap to say that methods and concepts are infringed, because even with the work that IBM has contributed, the methods and concepts were there before IBM's participation. Yes, the 2.4 kernel has better memory management than the 2.2 kernel, but memory management was still part of the 2.2 kernel (that's just for example, I don't know if SCO is saying memory management is one of the IP issues). You are correct in the way you are reading my response in that I am assuming it deals with the kernel (as that is the only part that is actually "Linux" and other applications normally included in distributions haven't been mentioned). I was under the impression that most of IBM's contributions were made after the 2.4 kernel was released, but I could easily be mistaken. Even so, if SCO is found to be correct, then the current 2.4.x kernel would be tainted. That still is not a show stopper as I said in my earlier post, for just about everything in the kernel, many submissions are made. Worst case for the kernel would be that 2.6 would be delayed to roll back tainted code and replaced with alternative "clean" code. I know that isn't a trivial task, but what it actually means is that even with a worst case, SCO wins all, Linux, as we know it would still survive (and SCO would still be going down the tubes). Again, IANAL, but another issue, particularly if SCO claims code further back than 1995 is tainted (when they bought UNIX back from Novell) is why they didn't take issue with the IP rights then. Since, they had a Linux distribution, they were fully aware of what was going on inside of it (or should have been). I have been told that one possible outcome of this suit is the possibility that the courts could say, that if you don't take action to enforce IP when it is first known to be misused, you implicitly allow it's use. Actually, this argument could hold for code even after 1995. If so, then SCO's suit boils down to they are upset that IBM broke a contract with them. But, they didn't sue for breach of contract, they sued for lost IP. One would have to ask why and the answer is how do you award damages on a speculative R&D contract when there isn't any market shown to exist? You can't. IP on the other hand, you can show damages. But, as I stated earlier, SCO's market value has grown right along with the growth of Linux, so where is the damage? Now for the really interesting part. Let's assume that SCO is correct and IBM has tainted linux with IP that they did not own. Isn't that same tainted code in United Linux which SCO is part of? So what does SCO do now? They could allow United Linux to use the code with a restricted, non-open license, but if it is tied to the GPL'd kernel, then you couldn't release your own kernel with a more restrictive license than the original kernel had, could you? So, if SCO is successful in their argument against IBM, they would still need to explain how there were damages since they have allowed their IP to be used in UnitedLinux which is release under a GPL (regardless of IBM, since SCO has a stake in UnitedLinux and there IP is in the product, they have released their IP under a GPL). Anyway, as I have said before, IANAL, so I'll let the free software foundation make their arguments. I'm sure they will do a much better job than I could do! Joeb restrict it and everyone would still have access to it (so again, where is the damage to SCO).
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